ABSTRACT
On 20 April 2010, the International Court of Justice (hereinafter ‘ICJ’ or ‘the Court’) pronounced its ruling regarding the dispute opposing Argentina and Uruguay in the Pulp Mills on the River Uruguay case.1 The dispute originates from the construction of two pulp mills on the left bank of the Uruguay River, near the Uruguayan city of Fray Bentos and opposite the Argentinian region of Gualeguaychú. The construction works of the first mill, called CMB (ENCE),2 started in November 2005. However, the Spanish sponsors of the project announced they were definitively abandoning it in September 2006. The second pulp mill, Orion (Botnia),3 was constructed a few kilometres downstream of the site planned for CMB (ENCE). The project was launched in 2003 and the Orion (Botnia) mill has been in operation since 9 November 2007. As emphasized by the ICJ in 2006,4 this is the biggest foreign investment
that Uruguay has ever hosted; thus the stakes were quite high for Uruguay. From the very beginning, on the other bank of the river, the project has stirred up vehement protests from the Argentine authorities as well as from the population who feared pollution damage in a region where the main economic activities are tourism, fishing and agriculture. Since December 2005, the bridges between the two countries have occasionally been blocked by gatherings of Argentine citizens. In this tense context, several judicial and non-judicial procedures at the
domestic, regional and international levels have been triggered, including procedures based on the social and environmental responsibility of
enterprises.5 The two states agreed in 2005 on the creation of a High-Level Technical Group, the GTAN,6 which aimed to find a negotiated solution. The King of Spain also offered mediation. None of these initiatives resulted in reaching a settlement. On 4 May 2006, Argentina brought the dispute before the ICJ, grounding the referral on Article 60, paragraph 1 of a bilateral treaty in force between the two countries: the Statute of the River Uruguay signed on 26 February 1975 (the Statute).7 Its object and purpose are to promote the ‘optimum and rational utilization of the River Uruguay’ (Article 1). It frames the river’s uses and provides for obligations of consultation, information and cooperation between the parties, as well as the prevention of environmental harm. In the following months, the Court examined two requests for the indi-
cation of provisional measures. First, on 13 July 2006, it dismissed an Argentine request submitted at the same time as the main complaint, which demanded the suspension of the construction of Orion (Botnia).8 Second, on 23 January 2007, the ICJ dismissed another request submitted by Uruguay, the aim of which was to obtain an emergency removal of the blockades that Argentine opponents to the project had organized on the bridges and roads connecting the two countries.9 A few months before this request, Uruguay had already referred this matter to the Mercosur arbitral tribunal. In an award of 6 September 2006, the latter had refused to command Argentina to remove the blockades but had stated that Argentina had failed to comply with its due diligence obligations.10
